11.1 Common law systems

Common law systems, rooted in medieval England, form the basis of legal systems in many countries today. These systems rely on court decisions and judicial precedents to establish and interpret laws, rather than solely on legislative statutes or executive actions.

Key principles of common law include stare decisis, which ensures consistency in legal rulings, and the adversarial system, where opposing parties present their cases before an impartial judge or jury. This approach contrasts with civil law systems, highlighting the unique role of judges and precedents in shaping legal outcomes.

Origins of common law

• Common law originated in England during the Middle Ages and developed through the decisions of courts and judges rather than through legislative statutes or executive branch actions
• Emerged as a way to provide consistency and predictability in the administration of justice based on the principle that similar cases should be decided in a similar manner
• Spread to many countries that were formerly part of the British Empire, including the United States, Canada, Australia, and India, and continues to be an important source of law in these jurisdictions today

Key principles of common law

Stare decisis vs judicial precedent

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• Stare decisis is the legal principle that courts should follow the precedents established by prior decisions in similar cases
  • Ensures consistency and predictability in the application of law
  • Promotes fairness by treating similar cases in a similar manner
• Judicial precedent refers to the body of prior court decisions that serve as authoritative examples for future cases
  • Lower courts are generally bound to follow the precedents set by higher courts within the same jurisdiction
  • Precedents can be overturned by higher courts or through legislative action, but this is relatively rare

Adversarial system in common law

• Common law systems typically employ an adversarial approach to legal proceedings
  • Parties to a case present their arguments and evidence before an impartial judge or jury
  • Each side is responsible for advocating for their own interests and challenging the arguments of the opposing party
• Adversarial system is based on the belief that the truth is most likely to emerge through a competitive process of evidence presentation and argument
  • Contrasts with inquisitorial system used in many civil law jurisdictions, where the judge plays a more active role in investigating the facts of a case

Sources of law in common law systems

Case law vs legislation

• Case law, also known as common law or judge-made law, is the body of law that is derived from judicial decisions rather than from statutes or constitutions
  • Judges create case law through their interpretations and applications of existing legal principles to the specific facts of a case
  • Case law is an important source of legal authority in common law systems, particularly in areas where there is no applicable statute or constitutional provision
• Legislation, also known as statutory law, is law that is enacted by a legislative body such as a parliament or congress
  • Takes the form of statutes, which are written laws that are formally adopted and promulgated
  • In common law systems, legislation can modify or supersede case law, but it is interpreted and applied by the courts in light of existing common law principles

Role of statutes in common law

• Although common law is primarily derived from judicial decisions, statutes also play an important role in common law systems
  • Statutes can codify existing common law principles, modify or abrogate common law rules, or create entirely new areas of law
  • Courts interpret and apply statutes in light of common law principles and precedents, using techniques such as analogical reasoning and statutory interpretation
• In some common law jurisdictions, such as the United Kingdom, statutes are the primary source of law and common law plays a secondary role
  • In others, such as the United States, common law and statutory law are considered equally important sources of legal authority

Court structure in common law jurisdictions

Trial courts vs appellate courts

• Common law court systems typically have a hierarchical structure with two main types of courts: trial courts and appellate courts
• Trial courts, also known as courts of first instance, are where legal proceedings begin and where the facts of a case are established through the presentation of evidence and testimony
  • Decisions of trial courts can be appealed to higher courts for review
• Appellate courts review the decisions of lower courts to determine if there were any errors of law or procedure
  • May affirm, reverse, or modify the decision of the lower court
  • Highest appellate court in a jurisdiction is typically known as the supreme court (United States, Canada) or the high court (United Kingdom, Australia)

Jurisdiction of common law courts

• Jurisdiction refers to the authority of a court to hear and decide a particular case
• In common law systems, jurisdiction is typically divided between courts based on factors such as the subject matter of the case, the amount in controversy, and the geographic location of the parties or events
  • For example, a court may have jurisdiction over criminal cases, civil cases, or both; over cases involving a certain minimum amount of money; or over cases arising within a particular geographic area
• Some courts, such as the United States Supreme Court, have discretionary jurisdiction, meaning they can choose which cases to hear
  • Others, such as trial courts, have mandatory jurisdiction and must hear all cases that are properly brought before them

Legal reasoning in common law

Analogical reasoning vs deductive reasoning

• Analogical reasoning is a common method of legal reasoning in common law systems
  • Involves comparing the facts of a current case to the facts of previous cases to determine if the same legal principles should apply
  • Allows judges to apply established legal rules to new situations that may not have been specifically addressed by prior cases or statutes
• Deductive reasoning, also known as syllogistic reasoning, is another method of legal reasoning that is used in both common law and civil law systems
  • Involves applying general legal principles or rules to specific facts to reach a conclusion
  • Typically involves a three-step process: (1) identifying the applicable legal rule, (2) determining the relevant facts of the case, and (3) applying the rule to the facts to reach a conclusion

Distinguishing cases in common law

• Distinguishing is a technique used by judges in common law systems to differentiate a current case from a previous case that appears to be similar
  • Allows judges to avoid following a precedent that would lead to an unjust or undesirable result in the current case
• Judges may distinguish cases based on factual differences, such as the specific actions or intentions of the parties, or based on legal differences, such as the applicability of different legal rules or principles
  • For example, a judge may distinguish a prior case involving a contract dispute between two businesses from a current case involving a contract dispute between an individual and a business, based on the different bargaining power and sophistication of the parties

Evolution of common law

Adaptability of common law over time

• One of the key features of common law is its adaptability to changing social, economic, and technological conditions over time
  • Judges can modify or extend existing legal principles to address new situations and issues that may not have been anticipated by prior cases or statutes
  • Allows the law to evolve incrementally in response to changing circumstances, rather than requiring wholesale revision through the legislative process
• Examples of areas where common law has adapted over time include:
  • The recognition of new types of legal claims or defenses, such as the right to privacy or the defense of necessity
  • The application of existing legal principles to new technologies, such as the use of electronic signatures or the regulation of online speech

Influence of equity on common law

• Equity is a separate body of law that developed in England alongside common law to provide remedies in cases where the strict application of common law would lead to unjust or unfair results
  • Originally administered by separate courts known as courts of chancery, but later merged with common law courts in most jurisdictions
• Equitable principles and remedies have had a significant influence on the development of common law over time
  • For example, the concept of fiduciary duties, which require certain individuals (trustees, executors, partners) to act in the best interests of others, originated in equity but has been incorporated into common law
  • Similarly, the remedy of injunction, which is an order requiring a party to do or refrain from doing a certain act, originated in equity but is now available in common law courts

Common law vs civil law systems

Procedural differences in common law

• Common law systems have a number of procedural features that distinguish them from civil law systems
  • Adversarial system, where parties are responsible for presenting evidence and arguments, rather than inquisitorial system where the judge takes a more active role
  • Jury trials, where a group of ordinary citizens is responsible for determining the facts of a case and applying the law to those facts, rather than a judge alone
  • Extensive pre-trial discovery process, where parties are required to exchange information and evidence before trial, rather than presenting evidence for the first time at trial
• These procedural differences reflect the common law emphasis on individual rights and the role of the courts in protecting those rights
  • Adversarial system and jury trials are seen as important safeguards against government overreach and abuse of power
  • Pre-trial discovery helps to level the playing field between parties and prevent surprise at trial

Role of judges in common law

• Judges play a central role in common law systems as the primary creators and interpreters of law
  • Through their decisions in individual cases, judges establish precedents that shape the development of law over time
  • Judges have significant discretion in applying legal principles to the facts of a case and in determining the appropriate remedy or punishment
• In contrast, judges in civil law systems are typically seen as more constrained by written codes and statutes
  • Their role is to apply the law as written, rather than to create new law through their decisions
• The role of judges in common law systems has been the subject of ongoing debate and criticism
  • Some argue that judges have too much power and that their decisions are influenced by personal or political biases
  • Others defend the role of judges as an important check on legislative and executive power and as a means of ensuring fairness and consistency in the application of law

Application of common law worldwide

Common law in former British colonies

• Common law spread to many parts of the world through the expansion of the British Empire during the 18th and 19th centuries
  • British colonizers established common law systems in colonies such as India, Canada, Australia, and New Zealand
  • After gaining independence, many of these countries retained elements of the common law system, often combined with local customary law or civil law traditions
• The influence of common law in former British colonies can be seen in areas such as:
  • The organization of the court system and the role of judges
  • The use of precedent and the doctrine of stare decisis
  • The adversarial nature of legal proceedings and the use of jury trials
• However, the extent to which common law principles are applied in former colonies varies widely depending on factors such as:
  • The degree of influence of other legal traditions, such as civil law or Islamic law
  • The extent to which the country has modified or codified its laws since independence
  • The political and social context in which the legal system operates

Variations of common law across jurisdictions

• While common law systems share many similarities, there are also significant variations in how common law is applied across different jurisdictions
  • Some countries, such as the United States and Canada, have a federal system where there is both a national common law and separate state or provincial common laws
  • Other countries, such as the United Kingdom and Australia, have a unitary system with a single national common law
• Variations in common law can also arise from differences in the sources of law recognized in each jurisdiction
  • For example, some common law jurisdictions place greater emphasis on judge-made case law, while others rely more heavily on statutes and codes
  • Some jurisdictions have incorporated elements of civil law, such as the use of written pleadings or the absence of jury trials in certain types of cases
• The interpretation and application of common law principles can also vary across jurisdictions based on factors such as:
  • The specific facts and circumstances of the case
  • The judicial philosophy and approach of the individual judge or court
  • The social, political, and cultural context in which the case arises
• As a result, while common law systems share a common heritage and many similar features, the actual practice of common law can look quite different from one jurisdiction to another